Friday, March 28, 2014
A Norfolk judge has slammed prosecutors whose “manifestly flawed decisions” forced him to carry out a “serious miscarriage of justice”.
Frank Ferguson, deputy chief crown prosecutor for the CPS East of England said: “We are satisfied that the acceptance of the offer of pleas was correct and proper in the particular circumstances of this case and there has not been any misjudgement on the part of the prosecution.
“This was a case where we were offered pleas to affray by Aaron Ellwood and Ricky Fuller and also, in Fuller’s case, to actual bodily harm and grievous bodily harm.
“There were difficulties in relation to the evidence against these two defendants which we considered most carefully before deciding to accept the pleas.
“We discussed the pleas with the victims beforehand who indicated they were happy with the decision to accept them.
“The pleas were also accepted by a different judge at an earlier hearing who shared the prosecution’s concerns about the evidence.
“The case proceeded against a third defendant, Robbie Smith, who pleaded not guilty to affray and grievous bodily harm with intent and was acquitted after full jury trial.
“At the sentencing hearing, as part of the outline of the case, counsel said that the pleas by both men included their involvement in punching and kicking the victims.
“Our view was that the basis of plea did show their involvement in the assaults against the victims and gave the court adequate sentencing powers.
“We will be writing to Judge Coleman regarding his comments.”
Judge Nicholas Coleman spoke out as he sentenced two men who kicked and punched two victims unconscious in Fakenham, before one of the attackers went on to break the jaw of a tattoo artist.
The “serious violence” happened more than two years ago, and the men were originally charged with grievous bodily harm (GBH) with intent, which can carry a maximum penalty of life imprisonment.
But prosecutors accepted lesser pleas, of GBH without intent carrying a maximum of five years and affray carrying a maximum of three years in prison.
Ricky Fuller, 29, of Blenheim Road, Sculthorpe, admitted GBH without intent, actual bodily harm and affray and Aaron Ellwood, 31, of Rose Walk, Wicken Green Village. admitted affray.
Fuller was yesterday jailed for three years and Ellwood was jailed for 18 months.
Addressing Norwich Crown Court after passing sentence, Judge Coleman said: “I go as far as to say that this misjudgement in the prosecutorial process I believe has led to a serious miscarriage of justice in that two men who should have been tried for causing GBH with intent were allowed to plead guilty to lesser charges which did not reflect their culpability.”
Frank Ferguson, deputy chief crown prosecutor for the CPS East of England denied there had been any “misjudgement” and said he would be writing to Judge Coleman regarding his comments.
He added the pleas had been considered carefully and were discussed with the victims before they were accepted.
The violence followed a disagreement in the Rampant Horse Pub over whose turn it was to play pool, the court heard.
While the initial dispute was diffused, Fuller and Ellwood lay in wait for friends Ben Gillard and Andrew Richardson when they walked to a pre-booked taxi outside the Lloyds TSB Bank in Norwich Street, Fakenham, after closing time.
Mr Gillard and Mr Richardson were both knocked out and kicked while on the ground, and when Mr Tidd tried to chase them away he was attacked by Fuller - who floored him, breaking his jaw in two places.
There had been severe delays to the case when prosecutors pursued charges against a third man - after accepting evidence from the pair already in the frame.
The third man - Robbie Smith - was cleared of all charges by a jury, and Judge Coleman said of Ricky Fuller and Aaron Ellwood’s evidence: “I positively disbelieve what both of you said on oath.”
He added he suspected the evidence was given in a bid to “salvage” the relationship of one defendant and his previous wife.
And Judge Coleman questioned why prosecutors had accepted the evidence against Mr Smith when the co-defendants had a clear “self serving interest” and had not made written statements to police.
Michael Clare, for Fuller, said his client was a “hard-working” scaffolder who had served in Iraq and Kosovo with the British Army, and had not offended since the incident.
He added Fuller had a wife, an eight-year-old son and a three-year-old daughter, and the two year wait before sentence had already punished them all.
“He has the mental wherewithal to deal with this, but he’s extremely concerned about how his wife will deal with this,” said Mr Clare.
Jonathan Goodman, for Ellwood, said his client had a family and three children, had separated from his wife but was expecting a child with his new partner.
Mr Goodman added the attack was an isolated incident.
Judge Coleman said: “Mr Richardson and Mr Gillard were trying to get a taxi home with their friends and you both attacked them.
“You were both engaged in the attack that involved punching and kicking and kicking when they were both rendered unconscious.”
He described the incident as “serious violence”, and said although Ellwood was not sentenced for the attack on Mr Tidd the affray was “as bad a case as you can see”.
He said if the men qualify for early release on licence they will be barred from all Fakenham pubs while on licence.
And he handed both men a three-year exclusion order from the Rampant Horse pub.
Victim Dan Tidd, the tattooist who was attacked by Fuller, said he was “gutted” the sentences were not longer.
But the 31-year-old told of his relief that the case was finally over, after weighing heavily on him for the last two years.
“For the trouble it’s caused me, the sleepless nights, the paranoia, I would prefer it if he went away for a little bit longer,” said Mr Tidd. “But I’m happy it’s over with and everyone can just go back to normality.
“The whole process has been quite draining.
“If you had asked me a year ago I think I would have been a bit angrier.
“I’m smiling today as I know it’s over now.”
Mr Tidd needed facial reconstruction surgery after the attack in the early hours of February 12, 2012.
He said of Fuller: “I’m never going to forget his face.”
Lori Tucker, prosecuting, said Mr Tidd’s mental state had changed after the attack, he had difficulty sleeping and his social life had deteriorated due to his anxiety.
She added he had not been able to return to Fakenham since the incident.